No. 18-1150

In the Supreme Court of the United States

STATE OF GEORGIA, ET AL., PETITIONERS

v.

PUBLIC.RESOURCE.ORG, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF THE CENTER FOR DEMOCRACY AND TECHNOLOGY AND CATO INSTITUTE AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

LESLIE M. SPENCER STEPHEN MEIL ROPES & GRAY LLP 1211 Avenue of the

Americas New York, NY 10036 ILYA SHAPIRO TREVOR BURRUS SAM SPIEGELMAN CATO INSTITUTE 1000 Mass. Avenue NW Washington, DC 20001

MARTA F. BELCHER

Counsel of Record MONICA A. ORTEL JAMES H. RICKARD ROPES & GRAY LLP 1900 University Avenue East Palo Alto, CA 94303 (650) 617-4000 Marta.Belcher@ropesgray.com LISA A. HAYES ROBERT S. ADAMS IV CENTER FOR DEMOCRACY

AND TECHNOLOGY 1401 K Street NW, Ste. 200 Washington, DC 20005

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TABLE OF CONTENTS

Page

Interest of amici curiae .................................................. 1

Summary of the argument .............................................. 2 Argument: I. Granting a copyright monopoly over official

codes undermines the constitutional purpose of copyright ................................................................... 4

A. Copyright takes works out of the public domain only because doing so ultimately benefits the public .......................................... 5

B. The government does not need copyright incentives to publish the official annotated code ................................................................... 8

II. The official version of the law should not be behind a paywall .................................................... 13

A. People should not be charged to access the laws they pay the government to write .... 13

B. People must have access to the laws that bind them ....................................................... 15

C. Forcing people to access official codes through a private website discourages public discourse ............................................. 17

1. People are likely to be confused about what material they are entitled to share .................................................... 17

2. Private parties may limit users’ ability to disseminate content .......... 18

III. Forcing people to access official codes through a private website kills competition and undermines users’ privacy and anonymity ........ 19

II

Table of Contents—Continued Page

A. Granting a copyright monopoly undermines competition .............................. 19

B. Granting a copyright monopoly forces users to agree to a private party’s terms and conditions ............................................... 21

C. Forcing people to access the official code through a private website endangers users’ anonymity and privacy ..................... 22

1. Private parties may monitor users as they search and view the law ...... 23

2. The laws a user views and searches for can reveal sensitive information ......................................... 24

3. Undermining users’ anonymity has a chilling effect ................................... 26

Conclusion ........................................................................ 27

III

TABLE OF AUTHORITIES

Page(s)

Cases:

Banks v. Manchester, 128 U.S. 244 (1888) ................. 9 Barlow v. United States, 32 U.S. 404 (1833) ............ 16 Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) .... 13 Building Officials & Code Adm’rs v. Code Tech.,

Inc., 628 F.2d 730 (1st Cir. 1980) ......................... 10 Community for Creative Non-Violence v. Reid,

490 U.S. 730 (1989)................................................. 10 Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926)................................................. 17 Eldred v. Ashcroft, 537 U.S. 186 (2003) .............. 6, 7, 8 Estate of Hogarth v. Edgar Rice Burroughs,

Inc., No. 00 CIV. 9569 (DLC), 2002 WL 398696 (S.D.N.Y. Mar. 15, 2002) ......... 10

FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ............................................ 16

Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) .......... 5 Georgia v. Harrison Co., 548 F. Supp. 110

(N.D. Ga. 1982), vacated by 559 F. Supp. 37 (N.D. Ga. 1983) ....................................................... 16

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)................................................. 19

International News Serv. v. Associated Press, 248 U.S. 215 (1918)................................................... 4

McCulloch v. Maryland, 17 U.S. 316 (1819) ............ 10 McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995)................................................. 26

IV

Cases—Continued: Page(s)

Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977)................................................. 13

Siegel v. Time Warner Inc., 496 F. Supp. 2d 1111 (C.D. Cal. 2007) ................. 10

Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002) ...................................... 26

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)......................................... 5, 7, 19

United States v. Valle, 807 F.3d 508 (2d Cir. 2015) ................................... 24

Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc), cert. denied, 539 U.S. 969 (2003) .......................... 10

Constitution and statutes:

U.S. Const. Art. 1, § 8, Cl. 8 ................................... 5, 19 Ga. Code Ann. (OCGA): ..................................... passim

§ 1-1-8 ..................................................................... 16 § 16-6-2 ............................................................. 12, 25 § 16-12-80 ............................................................... 12 § 17-17 .................................................................... 25 § 26-5 ...................................................................... 25 §§ 31-9a to 9b ........................................................ 25 § 37-3 ...................................................................... 25

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Miscellaneous: Page(s)

Federal Trade Commission, Data Brokers: A Call for Transparency and Accountability (May 2014), https://www.ftc.gov/system/ files/documents/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014/140527 databrokerreport.pdf ............................................ 25

Georgia Code – LexisNexis, Georgia Secretary of State (2018), https://sos.ga.gov/index.php /elections/georgia_code_-_lexisnexis .................. 23

Georgia General Assembly, Official Code of Georgia Annotated, LexisNexis, http://www.lexisnexis.com/hottopics/gacode/default.asp............................................................... 21

Georgia Law, https://georgia.gov/popular-topic/georgia-law ....................................... 16, 17, 21

H.R. Rep. No. 609, 100th Cong., 2d Sess. 17 (1988) ......................................................................... 7

Kashmir Hill, Data Broker Was Selling Lists of Rape Victims, Alcoholics, and “Erectile Dysfunction Sufferers,” Forbes (Dec. 19, 2013) ......................................................................... 25

Idaho Code, LexisNexis, https://store.lexisnexis.com/products/idaho -code-skuusSku6981 ............................................... 15

Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813) ..................................... 6

Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 443 (J. Boyd ed. 1956) ............. 6

VI

Miscellaneous—Continued: Page(s)

LexisNexis: Lexis Advanced Packages for Online Legal

Research (2019), https://www.lexisnexis.com/en-us/ SmallLaweCommerce ..................................... 14

Privacy Policy (May 25, 2018), https://www.lexisnexis.com/en-us/terms/privacy-policy.page ......................... 23

Taxes, https://store.lexisnexis.com /help/taxes ......................................................... 14

Terms & Conditions (Jan. 7, 2013), https://www.lexisnexis.com /terms/ ............................................. 21, 22, 23, 24

Terms & Conditions for Use of the Online Services (May 23, 2018), https://www.lexisnexis.com/en-us/terms/general/default.page ................. 18, 19

John Locke, The Second Treatise of Civil Government (1690), https://www.gutenberg. org/files/7370/7370-h/7370-h.htm ......................... 11

Douglas MacMillan, How to stop companies from selling your data, Wash. Post (June 24, 2019) ......................................................................... 25

Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments in J. Madison, Writings (J. Rakove ed. 1999) ............................ 6, 7

Nat’l Conference of State Legislatures, State Legislatures, State Statutes/Code: Holder of Copyright (2011), http://www.ncsl.org/ documents/lsss/Copyright_Statutes.pdf ............ 15

VII

Miscellaneous—Continued: Page(s)

Official Code of Georgia Annotated, LexisNexis (Oct. 13, 2018), retrieved from Internet Archive Wayback Machine, https://web.archive.org/web/ 20181013091438/https://store. lexisnexis.com/categories/content-type/statutory-codes-175/official-code-of-georgia-annotated-skuSKU6647/details ...... 14, 16

Rainey Reitman, Who Has Your Back?, Electronic Frontier Foundation (July 10, 2017), https://www.eff.org/who-has-your-back-2017 ................................................................ 20

Tennessee Courts System, Tennessee Code—Lexis Law Link, http://www.tsc.state. tn.us/Tennessee%20Code ..................................... 15

USDA, Official USDA Food Plans: Cost of Food at Home at Four Levels, U.S. Average, July 2019, https://fns-prod.azureedge.net /sites/default/files/media/file/Costof FoodJul2019.pdf ..................................................... 14

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INTEREST OF AMICI CURIAE1

The Center for Democracy and Technology (CDT) is a non-profit public interest organization. For almost 25 years, CDT has represented the public’s interest in an open, decentralized internet and worked to ensure that the constitutional and democratic values of free expres-sion and privacy are protected in the digital age. CDT’s team has deep knowledge of issues pertaining to the in-ternet, privacy, security, technology, and intellectual property, with backgrounds in academia, private enter-prise, government, and civil society. This diversity of experience allows CDT to translate complex policy into action: it convenes stakeholders across the policy spec-trum, advocates before legislatures and regulatory agencies, and helps educate courts.

The Cato Institute is a nonpartisan, nonprofit think tank dedicated to individual liberty, free markets, and limited government. Cato’s Robert A. Levy Center for Constitutional Studies promotes the principles of consti-tutionalism that are the foundation of liberty. To those ends, Cato conducts conferences and publishes books, studies, and the annual Cato Supreme Court Review.

Consistent with their values, CDT and Cato believe that the Constitution and sound public policy require that people have free, unmonitored access to edicts of

1 Both parties have consented to the filing of this amicus curiae

brief. No counsel for any party authored this brief in whole or in part, and no person or entity, other than amici curiae or their coun-sel, made a monetary contribution intended to fund the preparation or submission of this brief.

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government like the Official Code of Georgia Annotated (OCGA).

SUMMARY OF THE ARGUMENT

The OCGA rightfully belongs to the public. No one—not the government, and not a private contrac-tor—should be granted a monopoly to exclude people from accessing the official version of the laws that bind them. Nor should individuals be forced to access the of-ficial version of the law through a private website that tracks what laws they view.

Copyright exists to benefit the public. The nation’s founders allowed works to be removed, for a limited time, from the public domain only because the tempo-rary harm to the public of doing so is ultimately out-weighed by the public benefit. By granting authors a temporary monopoly, copyright gives them incentive to create works that otherwise would not exist and that will ultimately belong to the public.

That fundamental bargain of copyright is inapplica-ble here. Granting the government a copyright monop-oly over the official version of the law harms the public with no countervailing benefit. The government does not need copyright to incentivize it to publish the official version of the law, or annotations that explain the law. That is the government’s basic function.

An engaged and informed public is essential to a thriving democracy: participants must be able to easily access and engage with the laws governing society. They should not be charged to access the official codes they paid the government to write. And people must have access to the laws that bind them, as well as the

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ability to redistribute the official version of the law freely. If only certain portions of the official annotated codes are subject to copyright, ordinary people are likely to be confused about what they are permitted to share, imposing not only financial costs on individuals, but also civic costs by hampering their ability to speak freely about the law.

Finally, allowing a private contractor to be the only entity licensed to distribute the official version of the law harms people by hampering their ability to view the law anonymously. This exclusive license arrangement forces people to disclose deeply sensitive information—includ-ing the laws that individuals view and the search terms they use—to a private party. This data could be dis-closed to third parties—including the government—and the mere fact that users are monitored could have a chilling effect, dissuading them from viewing and under-standing the law. Moreover, granting a copyright mo-nopoly that allows only licensed entities to display works like the OCGA eliminates competition that could lead to better terms for users.

This Court should affirm that the OCGA—an au-thoritative government text that aids people in under-standing their legal obligations—is a government edict that cannot be wrested from the public domain.

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ARGUMENT

I. GRANTING A COPYRIGHT MONOPOLY OVER OFFI-

CIAL CODES UNDERMINES THE CONSTITUTIONAL

PURPOSE OF COPYRIGHT

The nation’s founders intended that, by default, hu-man knowledge would be “free as the air to common use.” International News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting). As Justice Brandeis explained, “the noblest of human productions” may take on the “legal attribute of property * * * only in certain classes of cases where public policy has seemed to demand it.” Ibid.

Copyright exists as a limited exception to that “gen-eral rule of law,” 248 U.S. at 250 (Brandeis, J., dissent-ing), because it benefits the public by inducing authors to create works that otherwise would not exist and that will ultimately belong to the public. That is, copyright takes works out of the public domain for a limited time only because doing so will ultimately benefit the public more than the public is harmed by that temporary re-moval.

But the government does not need any incentive to write official codes. That is the government’s job. With-out the need for this incentive, the fundamental bargain of copyright is inapplicable: there is no reason to wrest official codes from the public domain when doing so is not necessary to motivate their creation. Furthermore, be-cause the works removed from the public domain are of-ficial codes—as opposed to, for example, artistic works—the harm to the public is particularly acute. Extending

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copyright protection to official codes therefore under-mines the fundamental purpose of copyright: to benefit the public.

A. Copyright Takes Works Out of the Public Do-main Only Because Doing So Ultimately Ben-efits the Public

The Constitution establishes that the purpose of copyright is “[t]o promote the progress of science and useful arts, by securing for limited times to authors * * * the exclusive right to their * * * writings.” U.S. Const. Art. 1, § 8, Cl. 8. Providing a limited copyright monopoly is supposed to promote progress because it gives au-thors the incentive to engage in creative work by allow-ing them to financially benefit from those works and to control the way those works are used. The purpose of granting this monopoly is to benefit the public. As this Court has explained, “[t]he sole interest of the United States and the primary object in conferring the monop-oly lie in the general benefits derived by the public from the labors of authors.” Fox Film Corp. v. Doyal, 286 U.S. 123, 127-128 (1932). That is, “[t]he immediate effect of our copyright law is to secure a fair return for an au-thor’s creative labor. But the ultimate aim is, by this in-centive, to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

This monopoly temporarily harms the public in or-der to ultimately bestow greater benefits to the public. As Justice Breyer has articulated, copyright “imposes upon the public certain expression-related costs in the form of (1) royalties that may be higher than necessary

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to evoke creation of the relevant work, and (2) a require-ment that one seeking to reproduce a copyrighted work must obtain the copyright holder’s permission.” Eldred v. Ashcroft, 537 U.S. 186, 248 (2003) (Breyer, J., dissent-ing). Justice Breyer explained that, “[t]he first of these costs translates into higher prices that will potentially restrict a work's dissemination. The second means search costs that themselves may prevent reproduction even where the author has no objection.” Ibid.

The founders warned against monopolies and in-tended for the harms imposed by the copyright monop-oly to be outweighed by the ultimate benefits to the pub-lic. See Eldred, 537 U.S. at 246 (Breyer, J., dissenting). James Madison wrote that “[m]onopolies * * * ought to be granted with caution, and guarded with strictness [against] Abuse,” noting that the Constitution “limited [monopolies] to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the com-munity, as a purchase of property which the owner might otherwise with[h]old from public use.” Monopo-lies. Perpetuities. Corporations. Ecclesiastical Endow-ments in J. Madison, Writings 756 (J. Rakove ed. 1999) (Madison). Thomas Jefferson warned against even cop-yright monopolies. Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 Papers of Thomas Jefferson 443 (J. Boyd ed. 1956) (“The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a lim-ited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression”); see also Letter from Thomas Jef-ferson to Isaac McPherson (Aug. 13, 1813).

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These writings demonstrate that the founders im-posed the harms of copyright on the public only to ulti-mately secure even greater benefits for the public. In other words, “the Copyright Clause [is] a grant of legis-lative authority empowering Congress ‘to secure a bar-gain—this for that.’ ” Eldred, 537 U.S. at 214 (citation omitted). Under the terms of this bargain, the benefits to the public must ultimately outweigh the temporary harms to the public. That is why the scope and duration of copyright protection are limited: to balance the effect on the public so that the public ultimately benefits more than it is harmed. Madison 756; Eldred, 537 U.S. at 245-248 (Breyer, J., dissenting) (“The ‘reward’ is a means, not an end. And that is why the copyright term is lim-ited. It is limited so that its beneficiaries—the public—‘will not be permanently deprived of the fruits of an art-ist’s labors’ ” (quoting Stewart v. Abend, 495 U.S. 207 (1990))); see also Twentieth Century, 422 U.S. at 156 (“The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”); El-dred, 537 U.S. at 214 (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of indi-vidual effort by personal gain is the best way to advance public welfare” (quoting Mazer v. Stein, 347 U.S. 201, 219 (1954)) (internal quotation marks omitted)); H.R. Rep. No. 609, 100th Cong., 2d Sess. 17 (1988) (“Under the U.S. Constitution, the primary objective of copyright

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law is not to reward the author, but rather to secure for the public the benefits derived from the authors’ labors. By giving authors an incentive to create, the public ben-efits in two ways: when the original expression is cre-ated and * * * when the limited term * * * expires and the creation is added to the public domain.”).

The “principal responsibility in this area of the law” is “to protect the public interest in free access to the products of inventive and artistic genius.” Eldred, 537 U.S. at 242 (Breyer, J., dissenting). Justice Breyer has noted—quoting the legislators who wrote the U.S. House of Representatives Report on the landmark Cop-yright Act of 1909—that “were a copyright statute not ‘believed, in fact, to accomplish’ the basic constitutional objective of advancing learning, that statute ‘would be beyond the power of Congress’ to enact.” Id. at 247 (Breyer, J., dissenting) (quoting H.R. Rep. No. 2222, 60th Cong., 2d Sess. 6-7 (1909)). That is why Justice Breyer urged, in Eldred, that the Court “examine the statute’s effects in light of these well-established consti-tutional purposes” to see whether “copyright’s tradi-tional economic rationale applie[d]” in that case and whether the statute at issue there would “act as an eco-nomic spur encouraging authors to create new works.” Id. at 247, 254 (Breyer, J., dissenting).

B. The Government Does Not Need Copyright Incentives to Publish the Official Annotated Code

Here, the fundamental bargain of copyright is inap-plicable because the government does not need the fi-nancial incentives of copyright to produce the official version of the law. There is no reason to remove the

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OCGA from the public domain; doing so prejudices the public without providing any counterbalancing benefit to the public.

The creation and dissemination of the law is the gov-ernment’s sole and exclusive province. Indeed, elected and appointed officials are given salaries. The govern-ment should need no additional incentive to produce the official version of the law, or official annotations that ex-plain the law. The government must produce the law; failure to do so is not the result of insufficient incentive, but rather dereliction of duty.

This Court has declined to grant copyright protec-tion to the works of government officials who are paid a salary by the public, because such a salary serves as suf-ficient incentive. In Banks v. Manchester, this Court held that a judge cannot, for the purposes of copyright, be regarded as the author of an opinion, decision, state-ment of the case, syllabus, or headnote. 128 U.S. 244, 253 (1888). In its reasoning, the Court pointed to the judge’s salary, paid for by the public: “Judges, as is well under-stood, receive from the public treasury a stated annual salary, fixed by law, and can themselves have no pecuni-ary interest or proprietorship, as against the public at large, in the fruits of their judicial labors.” Ibid. The Court noted that “[t]he question is one of public policy, and there has always been a judicial consensus * * * that no copyright could, under the statutes passed by Con-gress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties.” Ibid.

The works-for-hire doctrine exists for the same rea-son: authors do not need copyright incentives to create

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when they are being paid a salary to do so. Under the doctrine, copyright ownership of works for hire vests in the employer or other person for whom the work is pre-pared. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 730 (1989). That is because, in the employment context, copyright “directs its incentives towards the person who initiates, funds and guides the creative activity, namely, the employer, but for whose patronage the creative work would never have been made.” Siegel v. Time Warner Inc., 496 F. Supp. 2d 1111, 1136 (C.D. Cal. 2007); Estate of Hogarth v. Edgar Rice Burroughs, Inc., No. 00 CIV. 9569 (DLC), 2002 WL 398696, at *19 (S.D.N.Y. Mar. 15, 2002).

Official government works like the OCGA can be analogized to a “work for hire” where the copyright should vest in the citizens who employ the government to create such works. Indeed, under the doctrine of pop-ular sovereignty, where the government exercises any sovereign powers, it acts through authority delegated from the people. McCulloch v. Maryland, 17 U.S. 316, 404-405 (1819). The Eleventh Circuit correctly held here that “lawmakers and judges are draftsmen of the law, exercising delegated authority, and acting as servants of the People, and whatever they produce the People are the true authors. When the legislative or judicial chords are plucked it is in fact the People’s voice that is heard.” Pet. App. 19a; see also Veeck v. S. Bldg. Code Cong. Int’l, Inc., 293 F.3d 791, 799 (5th Cir. 2002) (en banc) (“In per-forming their function, the lawmakers represent the public will, and the public are the final ‘authors’ of the law.”), cert. denied, 539 U.S. 969 (2003); Building Offi-cials & Code Adm’rs v. Code Tech., Inc., 628 F.2d 730, 734 (1st Cir. 1980) (“The citizens are the authors of the

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law, and therefore its owners, regardless of who actually drafts the provisions.”). Just as an employee hired to draft a work does not need additional copyright incen-tives to do so, copyright is not needed to move the gov-ernment to create works like the OCGA because the government exists to serve the people by drafting such works.

The government already has the incentive to create works like the OCGA to further its constituents’ under-standing and knowledge of the law so that those constit-uents can obey the law. The government has an interest in the laws being followed—and in order for laws to be followed, laws must be publicly promulgated and under-stood. See John Locke, The Second Treatise of Civil Government § 137 (1690), https://www.gutenberg.org /files/7370/7370-h/7370-h.htm (“[F]or all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds.”). Thus, the government is in-herently incentivized to create works like the OCGA, which both serves as the only official version of the law and also explains the laws by providing annotations that include statutory history, administrative guidance, and summaries of judicial histories. Creating the law and promulgating it so that people can understand and follow it is an incentive in and of itself. Copyright protection is not—and should not be—necessary to induce lawmakers to create works like the OCGA.

Because no incentive is necessary for the govern-ment to create works like the OCGA, granting copyright

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protection of such works ignores half of the bargain that copyright law strikes: it removes the official codes from the public domain, but provides none of the incentives promised in return. And, because of the nature of the work, the work’s return to the public domain upon expi-ration of its term of copyright protection is unlikely to provide much benefit to the public; by that time, most annotations will likely be irrelevant, as many laws and their interpretations will have evolved.

In the case of the OCGA and similar works, the bar-gain is backwards: not only does the public fail to reap any benefits from the removal of such documents from the public domain, but the harm to the public of that re-moval is particularly significant given the nature of the works.

Removing the official version of the law from the public domain is particularly concerning. As discussed below (p. 15, infra), the OCGA is designated as the au-thoritative source of the meaning of the law. Removing such a work imposes harms beyond those typically im-posed by copyright—the public is deprived not of a cre-ative work, but rather the official version of the law, in-cluding explanations as to what the law means and what actions could result in civil or criminal liability.

The OCGA’s annotations are crucial for understand-ing the law. For example, the OCGA includes annota-tions that inform people of legislation that the judiciary either limited (OCGA § 16-12-80 (explaining that private possession—but not distribution—of obscene materials is protected under the Constitution)) or entirely struck down as unconstitutional (OCGA § 16-6-2 (explaining that Georgia’s anti-sodomy law is unconstitutional to the

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extent it criminalizes private acts between consenting adults)). Even after courts have struck down these stat-utes as unconstitutional, they nevertheless remain in the unannotated code. Restricting access to the annotated code—which provides notice that such statutes are un-constitutional—causes harm to the public.2

Copyright strikes a balance: the harm resulting from a work’s removal from the public domain is in-tended to be outweighed by the benefit of the work’s cre-ation. Here, however, there is weight on only one side of the scale: the harm to the public. Because of the na-ture of the work, the weight on that side of the scale is unusually heavy—but, on the other side of the scale, there is no countervailing benefit to the public at all.

II. THE OFFICIAL VERSION OF THE LAW SHOULD

NOT BE BEHIND A PAYWALL

A. People Should Not Be Charged to Access the Laws They Pay the Government to Write

All people must be granted access to the laws that bind them, and they should not be charged multiple times for the privilege. Individuals already pay the gov-ernment, with their taxes, to write works like the OCGA. They should not be charged a second time by the

2 Permitting copyright over works like the OCGA is at odds

with the principles behind the separation of powers that is inherent to our democracy. See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 441-446 (1977); Buckley v. Valeo, 424 U.S. 1, 118-124 (1976) (per cu-riam). When the legislative branch restricts the distribution of the annotations that explain which statutes have been held unconstitu-tional or otherwise abrogated by courts, it undermines the power of the judiciary.

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government, or by a government contractor, to access those works—particularly at monopoly prices.

Until the Eleventh Circuit’s ruling in this case, Lexis—as the government’s exclusive licensee—was able to charge monopoly prices for the OCGA, and a hard copy cost $400 (not including tax or shipping). Official Code of Georgia Annotated, LexisNexis (Oct. 13, 2018), retrieved from Internet Archive Wayback Machine, https://web.archive.org/web/20181013091438/https:// store.lexisnexis.com/categories/content-type/statutory-codes-175/official-code-of-georgia-annotated-skuSKU 6647/details. That $400 is the equivalent of two weeks of groceries for a family of four. USDA, Official USDA Food Plans: Cost of Food at Home at Four Levels, U.S. Average, July 2019, https://fns-prod.azureedge.net/ sites/default/files/media/file/CostofFoodJul2019.pdf. For documents requiring a subscription to LexisNexis, a monthly “State Enhanced with Full Federal” subscrip-tion costs $125 each month—a “special promotional price.” LexisNexis, Lexis Advanced Packages for Online Legal Research (2019), https://www.lexis nexis.com/en-us/SmallLaweCommerce.

Even worse, these subscription fees and hard copies are themselves taxed—so individuals pay the govern-ment to write these official documents, pay the govern-ment’s licensee to access these documents, and then pay the government more taxes on top of those access fees. LexisNexis, Taxes, https://store.lexisnexis.com/help /taxes (“[W]e are required by law to charge applicable sales tax to all customers located in the United States.”).

While Lexis ostensibly provides a version of the OCGA online for free, this version does not include many

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important aspects of the OCGA—such as judicial sum-maries, code revision commission notes, and attorney general opinions—and must be accessed through a pri-vate party. J.A. 122, 145. Other states’ official annotated codes, as well as other official government documents, have similar restrictions on access. Nat’l Conference of State Legislatures, State Statutes/Code: Holder of Cop-yright (2011), http://www.ncsl.org/documents/lsss/ Copyright_Statutes.pdf; see, e.g., Tennessee Courts System, Tennessee Code—Lexis Law Link, http://www.tsc.state.tn.us/Tennessee%20Code (provid-ing access to only the unannotated code, and stating, “[b]efore you can view the content, you must click a but-ton that says you agree to [Lexis’s] terms and condi-tions”); Idaho Code, LexisNexis, https://store.lexis nexis.com/products/idaho-code-skuusSku6981 (selling for $515.00 a print copy of the Idaho Code, which is ad-vertised as “the only official source in Idaho for primary law”).

B. People Must Have Access to the Laws that Bind Them

It is both unconstitutional and absurd for the gov-ernment to require people to follow—and indeed, to know—the official codes and also to restrict access to those codes through a copyright monopoly.

As an authoritative government text that explains the law, the OCGA is an edict of government that people are effectively required to use. As the Eleventh Circuit observed below, the OCGA is designated as the authori-tative source of the meaning of the law, and comprises information that residents of the state of Georgia are ex-pected to know in order to comply with the law. See Pet.

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App. 26a-32a, 40a-43a. The OCGA controls in the case of conflict with any other source. See Georgia v. Harrison Co., 548 F. Supp. 110, 115 (N.D. Ga. 1982), vacated by 559 F. Supp. 37 (N.D. Ga. 1983) (“[A]nyone citing [any other compilation of Georgia law] will do so at his peril.”). The state of Georgia’s website, under the page entitled “Georgia Law,” links to the OCGA on Lexis’s website. See Georgia Law, https://georgia.gov/popular-topic/georgia-law. Indeed, individuals are expected to rely on the OCGA for any citation to codified Georgia laws: “any citation in any public or private document, writing, or other instrument to a law of the State of Georgia which has been codified in the Official Code of Georgia Annotated shall be construed to be a reference to such law as contained in the Official Code of Georgia Annotated.” OCGA § 1-1-8 (emphasis added). And, as noted above (pp. 12-13, supra), the OCGA states that certain statutes have been held unconstitutional or oth-erwise abrogated, whereas the unannotated code does not. Accessing the annotated code via Lexis is thus the only meaningful option for individuals, other than re-maining ignorant of the law.

Of course, in both criminal and civil matters, it is well established that ignorance of the law is no excuse for failure to comply with the law. Barlow v. United States, 32 U.S. 404, 411 (1833). This responsibility im-posed on individuals is impossible to reconcile with im-posing financial barriers to accessing the official version of the law, and otherwise restricting its dissemination through copyright. Doing so undermines the fundamen-tal due process principle “that laws which regulate per-sons or entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations,

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Inc., 132 S. Ct. 2307, 2317 (2012); Connally v. Gen. Con-str. Co., 269 U.S. 385, 391 (1926) (holding that the law cannot force “men of common intelligence [to] * * * guess at its meaning and * * * application”). See also ACLU C.A. Amici Br. 18-20 (arguing that allowing copyright protection of the official version of the law violates due process).

C. Forcing People to Access Official Codes through a Private Website Discourages Pub-lic Discourse

1. People Are Likely to Be Confused About What Material They Are Entitled to Share

It is undisputed that Georgia’s statutes themselves are uncopyrightable under the government edicts doc-trine. Pet. Br. 2. But, of course, the official law of Geor-gia—which Georgia’s own website links to3—is the OCGA, which only Lexis may display digitally. In the Petitioner’s view, some parts of Lexis’s display of the OCGA are copyrightable—meaning users are prohibited from copying or distributing those portions of the OCGA—whereas users are entitled to copy and share other parts of what is displayed. This is likely to confuse users and discourage public discourse.

For example, Lexis’s current display of the OCGA does not clearly identify which portions of the official code users are entitled to share. Before a user can view

3 For example, when a user visiting Georgia’s website clicks

on “Search the Official Code of Georgia,” the user is automatically redirected to Lexis’s display of the OCGA. Georgia Law, https://georgia.gov/popular-topic/georgia-law.

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the OCGA, the user must click “I agree” on a popup, which says: “These Terms and Conditions do not apply to the Statutory Text and Numbering contained in the Content of the site. However, the State of Georgia re-serves the right to claim and defend the copyright in any copyrightable portions of the site.” This text does not clarify what constitutes the “copyrightable portions,” and which portions of the code users are entitled to share. And, once a user has clicked “I agree” and can view the OCGA, the page makes no distinction between the allegedly copyrightable material (such as section ti-tles) and non-copyrightable material (such as the statu-tory text itself). This is likely to confuse users and dis-courage them from sharing text from the official code—even the portions that they themselves, as taxpayers, undisputedly own.

2. Private Parties May Limit Users’ Ability to Disseminate Content

Furthermore, terms and conditions imposed by pri-vate parties may limit users’ ability to disseminate con-tent. For example, those who agree to Lexis’s Terms and Conditions in order to access the OCGA are subject to restrictions on how they can disseminate the official code. Lexis’s Terms and Conditions state, for example, that a user may only “electronically display Materials re-trieved from the Online Services for the Authorized User’s individual use,” with a limited exception allowing users to display a “de minimis amount * * * to other Au-thorized Users * * * in the same physical location.” Lex-isNexis, Terms & Conditions for Use of the Online Ser-vices § 1.1(a) (May 23, 2018), https://www.lexisnexis .com/en-us/terms/general/default.page. Lexis also pro-hibits users from displaying documents to anonymous

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third parties, defining “Authorized User” to mean only “an Eligible Person whom you have identified to LN for purposes of issuing a LN ID.” Id. § 2.1.

Forcing users to access the OCGA—the official ver-sion of the law of Georgia—through Lexis therefore im-poses a civil cost in addition to the financial cost. Doing so is likely to confuse users about what portions of the code they are entitled to distribute, and limits their abil-ity to share the official code with others. This directly affects individuals’ First Amendment rights by under-mining their ability to participate in an informed “discus-sion of governmental affairs” as well as their ability to “effectively participate in and contribute to our republi-can system of self-government.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982).

III. FORCING PEOPLE TO ACCESS OFFICIAL CODES

THROUGH A PRIVATE WEBSITE KILLS COMPETI-

TION AND UNDERMINES USERS’ PRIVACY AND

ANONYMITY

A. Granting a Copyright Monopoly Undermines Competition

Copyright, by definition, grants the author of a work a monopoly that may lead to restrictions on the distribu-tion of that work. U.S. Const. Art. I, § 8, Cl. 8; Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). A copyright holder may choose to distribute a work widely, or not to distribute the work at all. In this case, the government chose to license the OCGA exclusively to one contractor, Lexis. This exclusive license means that the government will not license the OCGA to any

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other party “at any price.” Next-Generation Legal Re-search Platforms and Databases and Digital Accessibil-ity Advocate Amici Br. 22-23.

Giving one company a monopoly over distribution of the official version of the law eliminates beneficial mar-ket competition and harms the public. First, allowing only one company to display the OCGA allows Lexis to artificially inflate the price of the OCGA. That is why, as discussed above (p. 14, supra), a hard copy of the OCGA cost as much as two weeks of groceries for a fam-ily of four. Allowing other parties to display the OCGA—such as by eliminating copyright protection of such work—would create market competition that would drive down prices. The cost of a hard copy in such a market would be much closer to the actual cost of print-ing and shipping the book. Suzanne Scotchmer, Innova-tion and Incentives 105-106 (2004). And, thanks to Pub-lic.Resource.Org, we already know the price of a digital copy of the OCGA in a market that allows anyone to dis-tribute it: free.

Lexis’s monopoly over the OCGA also harms the public because it removes market pressure to improve features as well as the Terms and Conditions—which ul-timately impacts users’ privacy, security, and anonym-ity. Forcing users to access the OCGA through a single private website means that users have no choice but to disclose to that website sensitive data—such as search terms used and statutes viewed by a user. Allowing for competition, on the other hand, would enable users to

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choose websites that do not collect sensitive data, or that promise not to misuse that data.4

B. Granting a Copyright Monopoly Forces Us-ers to Agree to a Private Party’s Terms and Conditions

Because Lexis is the exclusive licensee of the OCGA, people who wish to view the OCGA online—in-cluding the undisputedly uncopyrightable portions of the OCGA, such as the statutes themselves5—have no choice but to agree to Lexis’s Terms and Conditions.

When a user visiting Georgia’s website clicks on “Search the Official Code of Georgia,” the user is auto-matically redirected to Lexis’s display of the OCGA, and a popup appears. Georgia Law, https://georgia.gov/popu lar-topic/georgia-law. In order to view the OCGA, the user must click “I agree” in the popup to agree to Lexis’s Terms and Conditions. Georgia General Assembly, Offi-cial Code of Georgia Annotated, LexisNexis, http:// www.lexisnexis.com/hottopics/gacode/default.asp. Those Terms and Conditions are around 4,500 words

4 For example, the Electronic Frontier Foundation prepares an

annual report comparing technology companies’ protection of user data. Rainey Reitman, Who Has Your Back?, Electronic Frontier Foundation (July 10, 2017), https://www.eff.org/who-has-your-back-2017.

5 Users are subject to Lexis’s Terms and Conditions even when accessing the portions of the OCGA that cannot be copyrighted—i.e., the statutory language itself. LexisNexis, Terms & Conditions, (Jan. 7, 2013), https://www.lexisnexis.com/terms/ (“This web site, including all of its features and content * * * may be used solely un-der the following terms and conditions.”).

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long and link to several other lengthy, binding docu-ments, such as the privacy policy (which is 2,814 words long), the “General Terms and Conditions for Use of the LexisNexis Services” (which is 4,026 words long), and the “LexisNexis Services Supplemental Terms for Spe-cific Materials” (which is 10,761 words long). Lex-isNexis, Terms & Conditions (Jan. 7, 2013), https://www.lexisnexis.com/terms/ (Terms & Condi-tions). In addition to these documents, there are four-teen links at the top of the main “Terms and Conditions” page leading to additional terms governing the use of Lexis’s services, such as the “LexisNexis® Digital Li-brary Terms and Conditions,” “End User License Agreement,” and “Professional Services Agreement.” Ibid. Together, these additional agreements are 41,665 words long. Reading at 250 words per minute, it would take a user more than four hours to read through the contracts that they must enter into before being allowed to even view the OCGA.

Even if a user were to undertake this task, the terms and conditions state that Lexis “reserves the right to change these Terms of Use at any time,” without notice and effective immediately—placing the burden on the user to “regularly review[] the Terms of Use” in order to understand these contractual obligations. Terms & Conditions § 26.

C. Forcing People to Access the Official Code through a Private Website Endangers Users’ Anonymity and Privacy

Forcing individuals to agree to the terms and condi-tions of a private website in order to view works like the OCGA leaves individuals with no meaningful option for

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browsing the official version of the law unmonitored. People seeking to understand the laws that govern them are forced to turn over sensitive information—such as which laws they view and what search terms they use—to a private party. That sensitive data could be sold to or otherwise accessed by additional third parties, includ-ing the government. But, regardless of who ultimately accesses the data, allowing a private party to monitor us-ers as they search and view the law undermines individ-uals’ anonymity and may have a chilling effect on their behavior.

1. Private Parties May Monitor Users as They Search and View the Law

Services like Lexis may closely monitor, track, and analyze—on an individually identifiable basis—which laws a user views and for how long. For example, Lexis’s terms and conditions state that “[nothing] sub-mitted to this Web Site [is] treated as confidential,” and use of the website “is at your own risk.” Terms & Con-ditions. Lexis’s privacy policy—which Georgia’s web-site links to—states that Lexis may automatically collect “[u]sage data, such as the features you used, the settings you selected, your URL click stream data, including date and time stamp and referring and exit pages, search terms you used, and pages you visited or searched for.” Georgia Code – LexisNexis, Georgia Secretary of State (2018), https://sos.ga.gov/index.php/elections/georgia_ code_-_lexisnexis; LexisNexis, Privacy Policy § 2.4, (May 25, 2018), https://www.lexisnexis.com/en-us/terms /privacy-policy.page.

Lexis also may report suspected unlawful activity to law enforcement; its privacy policy states that Lexis

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may take “any action we deem appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or ap-propriate to such persons or entities relating to user pro-files, e-mail addresses, usage history, posted materials, IP addresses and traffic information.” Terms & Condi-tions § 20.

2. The Laws a User Views and Searches for Can Reveal Sensitive Information

The copyright monopoly over the OCGA leaves Georgians without meaningful options for viewing the laws that govern them, unmonitored. This is particu-larly problematic because information about users’ search histories can be sensitive and revealing.

Such information could reveal, for example, that someone is contemplating how to navigate around a law, or that someone has already broken a law. For example, in United States v. Valle, a policeman with a cannibalism fetish was indicted on federal charges, including conspir-acy to commit kidnapping, based on his web activity, in-cluding online searches. 807 F.3d 508, 512-513 (2d Cir. 2015). Likewise, in SEC v. Fei Yan & Rongxia Wu, the defendant was charged with insider trading based on nonpublic merger information obtained from his wife, based in part on “internet searches for the phrases ‘how sec detect unusual trade’ and ‘insider trading with inter-national account.’ ” Compl. ¶¶ 1-2, 6, SEC v. Fei Yan & Rongxia Wu, No. 1:17-cv-05257, Dkt. 1 (S.D.N.Y. July 12, 2017).

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Information about the laws someone searches for and views could also reveal additional sensitive infor-mation—such as mental health status, pregnancy, sexual orientation, crime victim status, or even that the user is contemplating having an affair, deciding whether to de-clare bankruptcy, or committing some other perfectly le-gal but unsavory act. Indeed, the OCGA touches on nu-merous topics that could reveal sensitive information about individuals searching for such laws, including laws involving the involuntary treatment of mental health pa-tients (OCGA § 37-3), drug abuse (id. § 26-5), crime vic-tims’ rights (id. § 17-17), and abortion (id. §§ 31-9a to 9b). As another example, before this Court ruled that such laws were unconstitutional, the fact that someone searched for a state’s sodomy laws—such as OCGA § 16-6-2—could reveal that individual’s sexual proclivities.

In sum, granting a copyright monopoly in the official version of the law can leave individuals with no mean-ingful option other than to disclose deeply sensitive in-formation to a private government contractor.6

6 Once collected, this data could be sold or otherwise disclosed

to third parties, including the government. Many websites sell user data to third parties. Douglas MacMillan, How to stop companies from selling your data, Wash. Post (June 24, 2019). In fact, there is an entire “data broker” industry for monetizing user data. Fed-eral Trade Commission, Data Brokers: A Call for Transparency and Accountability (May 2014), https://www.ftc.gov/system/files /documents/reports/data-brokers-call-transparency-accountability-report-federal-trade-commission-may-2014/140527databroker report.pdf. The data that is routinely compiled and sold online often includes sensitive information, including—for example—lists of rape survivors, “erectile dysfunction sufferers,” and “AIDS/HIV sufferers.” Kashmir Hill, Data Broker Was Selling Lists of Rape Victims, Alcoholics, and “Erectile Dysfunction Sufferers,” Forbes

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3. Undermining Users’ Anonymity Has a Chilling Effect

Depriving individuals of the ability to access the of-ficial version of the law anonymously not only puts deeply sensitive personal information at risk—it also re-sults in a chilling effect that could dissuade them from viewing the law for fear of creating a lasting electronic record of their activities.

As this Court has held, “Anonymity * * * exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); see also Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1052 (Colo. 2002), as modified on denial of reh’g (Apr. 29, 2002) (“An-onymity is often essential to the successful and uninhib-ited exercise of First Amendment rights, precisely be-cause of the chilling effects that can result from disclo-sure of identity.”).

The specific case of the OCGA provides just one ex-ample of the potential harms of granting a copyright mo-nopoly over a government edict. Its removal from the public domain harms the public without any countervail-ing benefit, and forces individuals to pay monopoly prices and agree to a private party’s terms and condi-tions in order to view the official version of the law. Here, those terms and conditions explicitly say that a government contractor can collect deeply sensitive in-formation and disclose it to third parties, including the government—foreclosing the possibility that people can

(Dec. 19, 2013). Even if a private website does not seek to monetize user data, data breaches are a significant risk.

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view and search online the official version of the law anonymously.

These harms vastly outweigh any potential benefit of granting a copyright monopoly to the government for simply doing its job. Given the founders’ intent that cop-yright should ultimately benefit the public, this Court should find that works like the OCGA belong to the peo-ple.

CONCLUSION

For the foregoing reasons, the judgment of the court of appeals should be affirmed.

Respectfully submitted,

October 2019

MARTA F. BELCHER

Counsel of Record LESLIE M. SPENCER MONICA A. ORTEL STEPHEN MEIL JAMES H. RICKARD ROPES & GRAY LLP LISA A. HAYES ROBERT S. ADAMS IV CENTER FOR DEMOCRACY

AND TECHNOLOGY ILYA SHAPIRO TREVOR BURRUS SAM SPIEGELMAN CATO INSTITUTE